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Embedded Copyrights – The Not-So-Funny Side of Memes

On Behalf of | Sep 29, 2015 | Legal Blog

Do you ever forward memes to your coworkers and social media friends?

It might be a picture of a kitten hanging from a branch and being told to just “hang in there” or it might be a grumpy cat who “hates Mondays” or it might not even feature a picture of a cat. It might be a photo of actor Gene Wilder portraying creepy Willy Wonka and making a snarky comment about your use of the Internet. The point is that memes are a permanent part of life online and yet no one (until now) has really concerned themselves with who owns the rights to the photographs that are the basis for the silly, snarky, or insightful (?) comments electronically affixed to them.

Getty Images holds the right to enforce copyrights in millions of photographs and they manage those rights for tens of thousands of photographers who otherwise could not afford to enforce those copyrights. And, Getty Images recently issued a demand to the German blog Geeksisters for almost $900 in back licensing fees for posting the famous “Socially Awkward Penguin” meme on their Website. The Socially Awkward Penguin meme is a picture of a cute penguin in an awkward pose atop a blue background with various captions describing uncomfortable social situations like, “First date…Nothing to say.”


[For those not in the know, a “meme” is a virally-transmitted cultural symbol or social idea and in the context of the Internet usually takes the form of a photograph or other image with short comments presenting a different meaning than originally conveyed by the image. The word “meme” itself first was introduced by evolutionary biologist, Richard Dawkins, in 1976 and comes from the Greek word “mimema” (meaning “something imitated”).]

Getting back to our story, Geeksisters didn’t own any rights to the photograph, which originally had been taken by professional photographer George F. Mobley for National Geographic. Getty Images manages the rights to the photograph and makes it available for use upon payment of an appropriate licensing fee, beginning at $465 per use. If Geeksisters (and others) are allowed to use Mobley’s photograph, even as a meme and without paying the Getty Images licensing fee, then photographer Mobley’s rights under copyright law are trampled and it makes it that much harder for him to earn his keep as a photographer.

So far, neither Getty Images nor Mr. Mobley have initiated legal action to enforce their rights. However, it is important to understand that Geeksisters’ unauthorized use of the Socially Awkward Penguin image almost certainly constitutes copyright infringement. Under federal law, copyright infringement occurs when a copyrighted work is “reproduced, distributed, performed, publicly displayed, or made into a derivative work” by someone without permission from the copyright holder. Essentially, this means that infringement occurs when someone without authority infringes the rights of the rightful owner of the copyrighted material, including the right to reproduce the work. And, under U.S. law the penalty for copyright infringement can be much, much more than the $900 licensing fee being sought. Statutory damages can run into the millions under the right circumstances.

Why It Matters. As with so many things involving copyrights and the creators of the original works, how you perceive the issue of right and wrong usually depends on whether you are the creator or the end user. Creators want to be paid for creating while users want unfettered and free usage. This tension is compounded by the general misunderstanding of concepts like “fair use” and the “public domain.” Many people mistakenly believe that if an image (or other work) is found on the Internet then it is in the public domain and may be used freely by anyone without payment of any licensing fees. This is flat out wrong.

Many others believe that the addition of humorous comments to someone else’s photographs constitutes “fair use” and they are off the hook. The problem is that the “fair use” doctrine is merely a defense to a copyright infringement claim and the infringing party has the burden of proving in court that the meme was created and distributed for the purpose of “parody or satire.” However, in cases such as that of the Socially Awkward Penguin, the memes are not ridiculing the material itself (a requirement for a finding of parody) and it is doubtful they are making a sufficient point through irony, derision or wit to protect against the infringement claim. Even if they are ultimately right, would you want to spend the time and money necessary to prove your point in court?

A better (and cheaper) alternative would be to use your own photographs for the hilarious social commentary in your next soon-to-be-famous meme.